Thursday, December 13, 2018

The GCSB appear to be breaking the law again

When Parliament passed the Intelligence and Security Act 2017, one of the aims was ostensibly to give Ministers greater clarity over the spying activities they were being asked to authorise, so they could properly judge the necessity and proportionality of the breaches of human rights they were being asked to approve. As part of this, warrant applications were required to include greater detail. But are the spy agencies actually meeting those requirements? The Inspector-General of Intelligence and Security has reviewed the first 9 months of warrants under the new Act, and the conclusion is only "maybe".

Obviously there are teething problems when a new law is introduced, in this case compounded by the refusal of spy agencies to cooperate with IGIS beforehand on how it would be interpreted. The good news is that the SIS seems to have got with the programme, taken the IGIS' recommendations on board, and are now complying with the law. The story is different for the GCSB, and the IGIS identifies several major issues:

  • Seeking Type 2 warrants (which only authorise actions against foreigners) rather than Type 1 warrants (required for anything targeting a New Zelaander) for activities which they expect to result in the incidental collection of the private communications of New Zealanders. This means they are subject to a lower level of scrutiny, require only the approval of the rubberstamp Minister, and the "incidental intelligence" can be retained and used if they "incidentally" turn up anything interesting.
  • Using extremely broadly-defined classes of targets, where it is not entirely clear who might be a lawful target and who might not be (in at least one case, anyone who the GCSB had a "reasonable suspicion" that they might have a reasonable suspicion of).
  • Using tortured definitional games and reference to other warrants (in some cases, forward-looking references to future warrants that have not yet been authorised or even applied for) to obscure exactly who they are targeting and what they are doing, frustrating the goal of clarity and impeding the Minister's ability to assess the necessity of the warrant.

The IGIS's overall assessment: "I am unable yet to say that the authorisation of Bureau activities has achieved the expectations raised by the ISA". Which is a polite way of saying "I think they are breaking the law". The Act requires clarity so that Ministers can make an informed decision. GCSB seems to be deliberately impeding that. But as usual, the chances of anyone ever being held accountable for that are nil.